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Prof. Fraidin on Changing the Narrative in Child Welfare Cases

Every year the University of Michigan Law School’s Child Advocacy Law Clinic hosts the Bergstrom Child Welfare Law Training
Program in which law students from across the country go to Ann Arbor, MI to
learn about child welfare law. Matthew Fraidin, an associate professor at the UDC David A. Clarke School of Law and visiting professor at Georgetown University Law Center, gave this year's keynote speech about the need to change the
narrative in child welfare cases to focus on the strengths of the families.

Professor Fraidin's speech will also be published in TheGeorgetown Journal on
Poverty Law and Policy. Read the full speech below:

In 1987, Billy Calvin Jones was lucky to be living at
Wynne State
Prison Farm in the Texas Department of Corrections. The
other option
was Death Row a few miles away. Billy was 18 when he and a
couple of
friends robbed a pharmaceutical warehouse, looking for
drugs to fuel
their addictions. Billy killed the security guard. He was
convicted of
capital murder and sentenced to life in prison. The
prosecutors called
him "venomous” and "a threat to civilized society.”
According to the rock star, David Crosby, of Crosby,
Stills, Nash &
Young, Billy Calvin Jones represents safety, stability,
and maturity.
Crosby served a year in the mid-80s in a Texas prison for
drug and gun
offenses. By that time, Jones had served ten years. He
knew his way
around. In his autobiography, Crosby tells a different
story about Billy
Calvin Jones than that recounted by prosecutors at Billy’s
trial. Crosby
writes "Even though Billy Jones was younger than me, he
was an older
and wiser head. He taught me a lot about how to stay alive
in prison.”
Rowena Kingston is a recovering crack addict who lost six
children to the foster care system when she left them
alone for days on
end. I know her as the den mother to her entire
neighborhood, housing
and feeding kids and adults who have nowhere else to turn. Roberto James was a teenager in foster care. He’d bounced
in and
out of a dozen or more schools and probably 30 placements,
and was
arrested ten times in a year. Roberto constantly was
written up for
absconding from his group home placements. The other side
of the
story, though, is that Roberto was the sole caretaker for
his baby, and
the social work agency wouldn’t let him bring his baby to
his placement.
So Roberto "absconded” to his mother’s house, or his
mother-in-law’s
house. Many who cared about him saw the most gentle parent
they’d
ever known; the caseworker and judge saw an absconder, a
rulebreaker
– they saw the quintessence of irresponsibility.
So what is this all about?
Well, in law school, I had a friend who often came to
class
unprepared, or missing a notebook, or rushed into class
late, that sort of
thing. By way of excuse, he would say, and I quote, "I am
a work-in-progress.”
I thought that was sort of silly then, but it turns out
that I feel the
same way about being a lawyer. Since entering this
profession, I have
been on a journey. This evening, I’d like to have a
conversation about
what lawyers do, what lawyers in child welfare CAN do, and
how we can
do it. My goals are to find a way to do more good than
harm as a lawyer,
and to feel fulfilled and sustained by doing it.
The short version of the story is that I’ve always thought
that the
very essence of a lawyer is to do SOMETHING. I sit up and
take notice
of lawyers who don’t merely watch and let the world take
its course.
Were I a client, I think I’d want a lawyer who makes a difference.
In child welfare, the difference we can make as lawyers
for
parents, children, and the state, and as judges, is to
prevent children
from entering foster care unnecessarily. And we can end a
child’s stay
in foster care as quickly as possible. To do that, we have
to fight against
a powerful narrative of child welfare and against the
accepted "topdown”
paradigm of legal services.
In the next 25 minutes, I want to suggest that we can
achieve our
goals of limiting entries to foster care and speeding
exits from it by
looking for the strengths of the people involved in our
cases, rather than
their weaknesses. We can look for what they can do, rather
than what
they can’t. We can focus on their abilities, not the
shortcomings over
which we often obsess – like drug addiction, impatience,
illiteracy,
poverty. We can start from a premise that families
involved with child
welfare are bundles of assets, rather than collections of
problems. If we
can do all this, we can help families build, rather than watch
them fall.

THE PROBLEM

The problem is that we are imprisoned by a grand narrative
of
child welfare. That narrative is one of brutal, deviant,
monstrous
parents, and children who are fruit that doesn’t fall far
from the tree.
These are, to use Edgar Cahn’s phrase, "throwaway people.”
To give you an idea of the relentlessness of the messages
drummed into our heads, more than 90 percent of news
stories about
children are about violence by and against children, and
more than 90
percent of those stories focus on a discrete incident,
ignoring larger
public policy questions. One researcher found that 70 to
95% of stories
about child welfare are "horror stories.” These are
stories about
gruesome, brutal injuries inflicted on children by
unfathomably beastly
parents. Psychological anthropologist Axel Aubrun and
linguist Joseph
Grady confirmed that the most common child welfare media
story
frames depict murders or violent injuries by, in their
words, "brutal,”
"monstrous” parents. Finally, Dorothy Roberts and others
have pointed
out the inextricable link between stories of animalistic
behavior and
racial stereotyping.
So, what we think of when we think of children and foster
care is
brutality, savagery, deviance, and abuse. We think of
horrible, heinous
misdeeds perpetrated by monstrous felons. We think of
murders that
scream from the headlines, and the vile tragedy of family
sexual abuse.
There is another story, however. In fact, more than 70% of
the
children in foster care are there because of allegations
that they were
neglected, not abused. According
to Ruth White of the National Center
for Housing and Child Welfare, for example, "Nearly a third of all
children in foster care placement are separated from
their families
because their parents can’t afford safe, decent housing.”
Other children
live in foster care because they miss school without an
adequate
explanation, because they are left alone by their
parents for excessive
periods of time, or, according to researchers Lawrence,
Carlson and
Egeland, because of "death of a parent, parental
incarceration, parental
chemical addiction, or homelessness” without
maltreatment. But the grand narrative of rampant deviance and abuse,
embedded again and again, has created a pernicious
reality. The
nuclear secret of child welfare is that most of the
children in foster care
should not be there. Most of the children in foster care
are harmed
more than they are helped by being taken from their
families, and by
being kept in foster care for too long.
According to Paul Chill, "more than 100,000 children who
were
removed in 2001 – more than one in three – were later
found not to
have been maltreated at all.” A 1997 study of infants born
to substanceabusing
mothers found that the language development of children
placed in foster care was delayed in comparison to that of
children who
remained with their mothers. A 2006 study concluded that
children in
foster care developed more significant behavioral problems
than
similarly-maltreated children who remained at home. More
recently, an
MIT economist studied 15,000 kids and found that children
taken from
their families and placed in foster care fared worse in
life than similarly maltreated
children who were simply left with their families.
More evidence comes from Florida. Florida housed 28,000
children in foster care in Fiscal Year 2006-07. Then
Florida decided to
spend more on family preservation and less on out-of home
care. Two
years later, only 21,000 children were separated from
their families, and
safety improved. Among children who were placed in out-of-home
care,
reunification happened more quickly and more successfully.
Finally, in 60% of my students’ cases at the University of
the
District of Columbia, the children were returned home from
foster
homes or group homes – and were never found to be abused
or
neglected. These are kids who were taken from their homes
for a few
days, or a few weeks, or three months – but it turned out
they weren’t
abused or neglected, so they were returned.
One of the children in our cases was Kevin. Kevin was only
seven
months old at the time he was separated from his mother.
He was born
HIV-positive. The state took custody of Kevin because test
results
showed that his viral load was elevated. According to the
agency, the
doctor who treated Kevin said that the enormous elevation
could only
have been due to maladministration of the medication by
Kevin’s
mother. The problem was that the test results were a month
old, and
Kevin’s viral load actually was normal on the day he was
taken. The
other problem is that the doctor later signed a sworn
affidavit stating
she had never said that there could have been only one
cause for the
spike in Kevin’s viral load. Kevin was returned to his
mother’s custody. And James, who was taken from both his mother and his father
–
who did not live together – because his uncle came to
school and beat
him up for stealing a video game! The uncle didn’t live
with either
parent or the child! James lived with strangers in foster
care for a
month and a half.
And finally, Isaac, who was apart from his mother for
three
months. The government alleged that Isaac’s grandfather
had beaten
him across the legs and that Isaac’s mother knew about it
and failed to
stop it. The government also alleged that Isaac was "educationally
neglected” because he had missed seven days of school in
the first two
months of the term. Three months later, at trial, it
turned out that the
government couldn’t even prove that Isaac had been hit,
let alone by his
grandfather. And the educational neglect? One of the days
they said
Isaac was absent was the day the social worker went to the
school and
took Isaac to foster care!
The judge sent Isaac back home after three months.
So, we have a foster care system full of children who
should be at
home. What does it look like? Well, things haven’t
improved since
1991, when the National Commission on Children wrote
"If the nation
had deliberately designed a system that would frustrate
the
professionals who staff it, anger the public who finance
it, and abandon
the children who depend on it, it could not have done a
better job than
the present child-welfare system."
Children and youth in foster care experience multiple
moves from
home to home and high levels of abuse in foster homes and
group
homes. Former foster youth have sky-high rates of
homelessness,
unemployment, poverty, arrest and incarceration, teen
pregnancy,
dating violence victimization, and low educational
achievement.
This is the child welfare system we create by telling only
stories of
"Rowena Kingston, the crack fiend,” and "Roberto James,
the bad kid.”
We need to tell new stories.

THE SOLUTION

We need to figure out what we can do. How can we be part
of the
solution? How can we
disrupt the status quo, instead of perpetuating it?
How can we fight the narrative?
Fortunately, to paraphrase Brendan Sullivan, Oliver North’s
lawyer, we are not potted plants. We can do something. We
MUST do
something, because we’re standing here.
What I propose is a paradigm shift. The low-income
people you’ll
meet in this line of work? Suspend disbelief for a
moment, and convince
10
yourself they’re rich. The crummy neighborhoods the
children come
from and broken-down communities you see all around you?
Think of
those as strong and healthful, instead of shabby and
pathologized.
Here’s how.
To challenge the narrative of child welfare, we will
have to start by
challenging our approach to legal services. Anti-poverty
programs in
general, and legal service providers in particular, see
clients as the sum
of their needs. Clients and litigants come to us with
their problem.
Indeed they only get our attention because they have a
problem. And
the first thing we ask is "What is your problem? What do
you need?
How can I help you?” And we try to solve the problem. We
fill the hole,
apply a bandaid, put a finger in the dike, whatever. You’ve
heard the
metaphors.
But what is the result? More poor people than ever,
families being
broken up, children bouncing around foster care.
Here is a different model. Instead of merely asking: "What
is your
problem? What is the disease, the defect that brought
this mother – and
by extension, her child – into my life,” we can ask a
different question.
Not what is she lacking, but what does she have? Not
only "what can I
do?” but we can also ask a client or litigant "what can you do?”
What are
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her abilities, her strengths, her assets?
How can we re-envision her as rich, powerful, and
wealthy?
Well, can the mother whose child is taken away braid
hair? Can she
cook a meal? Can she smile at an elderly person in a
nursing home?
And let’s think about that person in the nursing home.
Can she watch a
child recite a poem and clap for the child? Can she read
a story? Can
she share her own story about life "in the old days”?
Does she know by
heart, perhaps, a recipe for the best fried turkey you’ve
ever eaten?
We can see with different eyes, and look for successes.
Did the
child’s mother pull her neighbor’s weeds last week? Or
change a
lightbulb? Or pick up litter? These are things she did,
not things she
didn’t.
Can she shop for groceries? Can she throw a party, or
drive a
neighbor to the doctor? Can she paint a room or clean a
house or walk a
dog?
The answers will be yes, yes, and yes.
In Chicago, eighth-graders in special education tutor
first-graders
in math. In Washington, D.C., returned prisoners escort
children to
school. In Washington, D.C., our Youth Court is run by kids we
might call
12
juvenile delinquents. Youth Court gives us a chance to
call them judges
and jurors. It is a diversion program, in which the very
youth who come
through the court as defendants sit as jurors, reviewing
infractions of
other youth. They hear facts, deliberate, and impose
sentences of
community service, restitution, counseling, or an
apology. So it turns out that delinquent youth also are judges!
Our clients can do the things we professionals do.
Research is
clear, for example, that women in violent relationships
are the very best
judges of their own safety, better than the police,
lawyers, case workers,
or even judges. In Washington, D.C., when our highest
court ruled that
there was no statutory right to custody for non-parents,
a swarm of lowincome
grandmothers descended on the city Council, submitting
statements and testifying about the necessity that the
law be amended.
And it was. Currently, in Washington, D.C., a homeless
homeless
advocate is leading a campaign to restore funding for
homeless services.
So our clients from Ward 8 in Washington, D.C., from the
Bronx,
New York, from a Chicago housing project, a Detroit
slum, and a gang
zone in Los Angeles can all DO SOMETHING. Sure in some
respects, they
CAN’T, but in others, they CAN.
Now, if the mother is a person with assets, wealth,
power, and
strength, we see her differently. We learn from her, we
admire her, we
grow from knowing her.
It turns out we don’t have all of the answers. We don’t
have a
preordained stereotype into which we can fit her any
more. She has
busted through the narrative. We have to take her for
who she is, the
real person, the complicated three-dimensional, real
person. She isn’t a
stick figure – the deviant, monstrous black hole of
problems, needs, and
pathologies.
And her strengths and powers and abilities unlock ours.
First, we can tell stories of competence: this is our
client, and these
are the many things she can do! Instead of defensively
trying to explain
away those problems and needs, we can tell a story of
strength, power,
and admirable qualities. Rather than begging the court
and case worker
for scraps – an extra hour of visitation, for example –
we can proudly
and confidently argue that separation is unnecessary, or
that
reunification should come quickly. This is my client!
She can do it!
And second, working with this person inspires and
challenges us in
a way that working for a stick figure cannot possibly
do. Our work is
exciting, not depressing! We collaborate with rich,
nuanced, textured
peers, rather than resignedly imposing our will on the
frightened losers we are conditioned to see. We can spend our energies
creating and
problem-solving, rather than dampening hopes and
delivering bad
news. In child welfare, family strengths animate the practice of
the
Center for Family Representation in New York City and the
Detroit
Center for Family Advocacy.
The Center for Family Representation represents parents
whose
children are at risk of entering foster care. With a
lawyer, social
worker, and parent peer advocate, CFR has kept 50% of the
kids from
ever entering foster care, and, for those who do enter,
they return home
in four months instead of the state average of three
years. Similarly,
Detroit’s Center for Family Advocacy represents parents of
children
already found to be abused or neglected. In the last data
of which I was
aware, CFA had kept 59 kids out of 59 from entering foster
care.

CALL TO ACTION

Lawyers.do.things. They don’t stand and watch and think it’s
right because everyone else does it, because the
courthouse culture has
always done it this way, because the old timers do it
this way, or even
because a law professor tells them to do it this way.
Lawyers don’t
stand idly by just because that’s what a judge wants.
And this –
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reducing the scourge of unnecessary foster care
placements and lengthy
stays in foster care – is what there is to be done in
child welfare. Every
lawyer and judge involved in child welfare has the
opportunity to do
this – to
keep children from unnecessary, devastating disruption, fear,
and pain.
We can
assume that every client and every
litigant and every
witness is different from every other one. We can’t assume
we’ve seen
this one before, that we can spot this kind of case a
mile away. We have
to resist the tendency to say "Oh, yeah, sure, this is
the FILL IN THE
BLANKS kind of case.” This is the "mother who is a
victim of domestic
violence” case. This is the "untreatable manic-depressive”
case. "This is
the immature-father-still-sponging-off-his-mother” case.
Because if we know all the answers from the outset, we
don’t get to
do any thinking. We don’t get to get to know this
particular client, this
particular human being. We don’t get to hear her story,
because we
don’t have to. And we can just stand around and let the
world take its
course.
But that’s not what lawyers do. We change the course of
events.
We add value. We make a difference.
So instead of knowing the answers, we can ask questions.
A lawyer can ask a parent or a child, "Who are you? What do you
do? What do
you know? Who do you love? What was your greatest
success? What is
your dream? What is your favorite food? What’s the most
frivolous
thing about you? What makes you laugh?”
As it happens, it’s much more fun to practice law as if
your goal is to
make a difference. If your goal is to make a difference,
you’ll have to
learn, instead of know. You’ll have to listen instead of
tell. You can ask
instead of declaim. You’ll get to know the dozens and
hundreds of
people you’ll come across, rather than spend your days
interacting with
the fleshly embodiment of your assumptions. You’ll hear
real people,
not a pathologized, stereotyped version of them created
by your own
preconceived notions. And instead of hanging out with
people whom
you despise or, at best for whom you have compassion,
you get to be
with a bunch of fascinating people from whom you’re
learning and with
whom you’re growing.
Conducting a job interview once, I had been having a bad
time. My
clients were all going through hard times, and I think I
was looking for
support from the poor interviewee! So I asked her, "Don’t
you get
depressed about these cases? All these bad things
happening?” She
answered, very thoughtfully, "I remember that my clients
are more than
17
their sadness.” And David Chavkin writes that each of
our clients, like
each of us, has a unique "constellation of family,
friends, experiences,
goals, dreams, needs, problems, and other factors.” Assuming
your
client is a bundle of assets unlocks for you an
opportunity to meet those
fascinating people, and to represent them far more
effectively.
You will go to court and you will see things that appall
you. In a
New Jersey case, a lawyer didn’t bother to meet with his
client for the
eight months preceding the client’s termination of
parental rights trial.
And the lawyer justified his actions by telling the
Court "I can learn
everything I need to from him in three minutes at
counsel table.” That
lawyer doesn’t need to meet with his clients because he
thinks he
already knows all the answers.
In one reported case, a
lawyer told a judge that it was a "foregone
conclusion” that his clients’ rights would be terminated.
In another, a
lawyer said his client’s rights "should be
terminated.”
We can’t be that lawyer. We can’t be that person.
What can we do? Well, that’s the fun part. There is no
limit,
because the facts are always different and your
imagination is
boundless if you let it be. When the agency shrugs its
shoulders and
says four siblings will have to live with strangers,
instead of with their
18
grandmother because the grandmother doesn’t have enough
beds for
the children, you can pull out a credit card, as I saw a
lawyer do. He told
the judge that HE would buy the beds, and the judge
ordered the agency
to reimburse him. In a criminal case, a judge delayed
sentencing for a
man convicted of stealing classified documents, because
the defendant’s
lawyer wrote a sentencing memorandum citing eight cases
that the
judge had never seen, and which supported a shorter
sentence. A few
months ago, ACLU lawyers may have stopped some
executions, by
uncovering emails indicating that states hadn’t complied
with an
administrative requirement to register their purchases of
a drug used in
the death cocktail. That’s plain, everyday lawyering,
not Thurgood-Marshall-changed-the-world lawyering, and I think we can
do it.
So, I have painted the world in black and white: either
you
passively sell your clients down the river by going
along and getting
along, or you stand valiantly in the breach,
determinedly fighting for
justice. I know that’s not really the way the world
works, of course, nor
the way any of us humans can function. Some days we’re
on, some
we’re off, some we’re funny and some sad. Sometimes we’re
energetic
and other times we’re slugs.
What you can do as a lawyer, however, is to be aware of
yourself. You can be reflective and self-conscious in the most
constructive way.
What are the choices I am making here? Am I assuming
weakness or am
I looking for strengths? Am I seeing only disease, or am
I finding
health? Do I wallow in the worst of my client, or build
on her best?
What is the story I tell myself about my client, and
what, then, is the
story I tell the Court? (If I am the judge, what stories
am I listening for?)
What story am I conveying to the client herself? Am I,
as Tennessee
lawyer Jim Neal once said, ready to be "the only person
by my client’s
side, all the way to the electric chair”?
I’ll conclude by returning to Roberto, the teenager I
mentioned at
the opening of these remarks. He was constantly arrested
AND very
sweet, he fought with police AND was gentle. Tragically,
Roberto was
shot and killed. Fittingly, the scene had dual
storylines. Roberto was
killed by a 15-year old, angered that Roberto had been
stealing the
other child’s drug stashes. Roberto had been doing it to
support his two
children, but the boy with the gun knew only the
wrongfulness, not the
righteousness, of Roberto’s actions. Roberto’s funeral
was a gruesome
affair, with people screaming and wailing and crying,
and the minister
begging Roberto’s friends not to retaliate against the
killer and his
friends. It was scary and horrible and awful. But the story has unfolded differently since then. There
has been
no retaliation. The two mothers of Roberto’s two
children, formerly
rivals, now live together and raise their children as
one family.
Roberto’s sister had a child about a year ago. She named
him Roberto,
and I’m watching him grow up in Facebook posts and
photos. It is a truism that there are at least two sides to
every story. In
child welfare, we tend to listen for stories of sadness
and failure, stories
of disability and incapacity. Our power and our joy,
however, are
unleashed when we help children and families tell
stories of happiness,
success, strength and achievement. Wishing won’t make
drug
dependency vanish, but an addict can be more to us than
her illicit
hunger.
Parenting coaches tells us that "what we focus on,
grows.” So
accentuating the positive won’t pay the rent or get rid
of roaches or cure
a mental illness, but embracing all parts of a family’s
reality, including
the admirable parts, can deepen our investment in them
and our
commitment to them.
As I hear myself tell the story, I know the positives of
Roberto’s
death don’t outweigh the negatives. And I don’t mean to
be Pollyanna. I
mean only to point out that plus and minus live
together, that positives
and negatives come side-by-side, and that joy can be
sorrow’s
companion, if we insist.
Being a lawyer is an incomparable gift. It can be a
gateway to
worlds of exploration and growth. What I hope for all of
us is to see the
best in others, to learn from everyone around us, and to
find out, by
examining our own choices, who we really are. If we
refuse to be potted
plants, if we seek and tell stories of strength, we can
do more GOOD than
harm as lawyers, and we ourselves
can grow and grow and grow.